Presenter:
Jerry Cooke

I.
Discussion: At
the May meeting, the Commission
deferred action on a proposed
definition of “healthy
condition” as well
as mandatory testing and
monitoring protocols for
detection of tuberculosis
and Chronic Wasting Disease
in deer held under scientific
breeder permits. The deferral
was to allow time for
Texas Deer Association
(TDA) members to voluntarily
establish a testing/monitoring
program amenable to the
Texas Animal Health Commission.
The TDA also indicated
at that time that a disease
management plan for their
membership would be developed
and presented to the Commission
at the August meeting.
Additionally, the Commission
authorized staff to withdraw
the original proposal
and republish a new proposal.
The new proposal appeared
in the July 19, 2002,
issue of the Texas
Register (27 TexReg 6492). Staff
will provide a summary
of public comment concerning
the proposal at the time
of the meeting.

II.
Recommendation: Staff
recommends that the Texas
Parks and Wildlife Commission
adopt the following motion:

“The Texas Parks
and Wildlife Commission
adopts 31 TAC §65.601,
65.602, 65.608, 65.610,
and §65.611, concerning
Scientific Breeder’s
Permits, with changes
to the proposed text as
published in the July
19, 2002, issue of the
Texas
Register (27 TexReg
6492).”

Scientific
Breeder Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife
Department proposes amendments
to §§65.601, 65.602,
65.608, 65.610, and 65.611,
concerning Scientific Breeder's
Permits. The emergence of
tuberculosis (TB) and chronic
wasting disease (CWD) in
both captive and free-ranging
deer populations in other
states is cause for concern
due to the potential threat
to wild deer and livestock
populations in Texas. The
Texas Animal Health Commission
(TAHC), which is charged
with controlling disease
threats to domestic livestock,
recently prohibited the
importation of white-tailed
deer, mule deer, black-tailed
deer, and elk into the state
of Texas from Colorado in
response to the presence
of free-ranging CWD in Colorado
herds. Free-ranging CWD
also has been detected in
populations in Nebraska
and Wyoming, and is known
to have occurred in captive
herds in Montana, South
Dakota, Oklahoma, Kansas,
and Nebraska. The biological
and epidemiological nature
of CWD is not well understood
and has not been extensively
studied, but it is known
to be communicable, incurable,
and invariably fatal. At
the current time, there
is no live test for CWD;
animals suspected of having
CWD must be euthanized in
order to obtain brain tissue
for definitive diagnosis.

Tuberculosis, though well
understood, is difficult
to eradicate in free-ranging
populations. Currently the
state of Michigan is involved
in a very expensive, extremely
time-consuming effort to
control TB in free-ranging
deer. Consequently, TAHC
requires that animals coming
from Michigan to Texas must
originate from a certified
TB-free facility. Additionally
TAHC requires TB testing
for any animal that comes
into

The

Additionally, the provenance
of imported deer cannot
be reliably established
at the present time, as
opposed to the extensive
documentation required for
movement of domestic livestock.
For instance, a deer might
be born in a captive herd
in Kansas, sold as a fawn
at auction in New York as
a yearling, and then sold
as a two-year-old in Texas,
making it difficult and
perhaps impossible to ascertain
if the animal has ever been
at risk of infection by
contact with positive animals.
Therefore, the department
proposes additional reporting
requirements for scientific
breeders in order to more
accurately determine the
population numbers within
each facility. Finally,
because deer imported into
Texas are frequently liberated
for hunting purposes (1,397
in 2001), the risk to the
multi-billion dollar hunting
and livestock industries
represented by even one
infected animal among a
wild population is considerable.
Thus, the department is
proposing to allow the release
of deer from scientific
breeder facilities to the
wild only by prior written
authorization of the department.

The

The amendment to §65.601,
concerning Definitions,
would add a definition of
the term 'healthy condition.'
The amendment is necessary
to define the characteristics
of deer that may be lawfully
sold, offered for sale,
transported, temporarily
relocated, or released to
the wild in this state,
which in turn allows the
health status of captive
deer to be monitored. The
amendment to §65.602,
concerning Permit Requirement
and Permit Privileges, would
require permittees to obtain
written approval from the
department prior to the
release of scientific breeder
deer to the wild. The amendment
is necessary in order to
ensure that infected animals
are not inadvertently introduced
amidst wild populations
of native deer. The amendment
to §65.608, concerning
Annual Reports and Records,
would require scientific
breeders to report the number
of fawns produced each year.
The amendment is necessary
to for the department to
determine as accurately
as possible the total number
of deer within a facility,
which in turn enables the
department to determine
that all deer within a facility
are accounted for each year.
The amendment to §65.610,
concerning Transport of
Deer and Transport Permit,
stipulates that deer temporarily
relocated for nursing or
veterinary purposes may
not leave the state for
those purposes. The amendment
is necessary to prevent
deer from being relocated
beyond the department’s
ability to monitor or enforce
laws designed to protect
Texas deer from exposure
and infection. The amendment
to §65.611, concerning
Prohibited Acts, is three-fold.
First, would make it an
offense for any person to
purchase, sell, offer for
sale, transport, temporarily
relocate, or release into
the wild a deer that is
not in a healthy condition.
Second, it would make it
an offense for any person
to possess a deer obtained
from an out-of-state source,
except for deer obtained
prior to the effective date
of the rulemaking. Third,
it would make it an offense
for any person to sell deer
to another person if the
buyer did not possess a
valid purchase permit. The
amendment is necessary to
provide for monitoring of
captive herds to allow the
earliest possible detection
of disease and to eliminate
the future introduction
of diseased animals. The
amendment is intended to
serve the long-term goal
of minimizing the risk of
disease transmission to
wild populations of deer
from deer possessed under
the provisions of Parks
and Wildlife Code, Chapter
43, Subchapter L.

2. Fiscal Note.

Robert Macdonald, regulations
coordinator, has determined
that for each of the first
five years that the rules
as proposed are in effect,
there will be no fiscal
implications to state and
local governments as a result
of enforcing or administering
the rules.

3. Public Benefit - Cost
Note.

Mr. Macdonald has also
determined that for each
of the first five years
the rules as proposed are
in effect:

(A) The public benefit
anticipated as a result
of enforcing or administering
the rules as proposed will
be the protection of wild,
native deer from communicable
diseases introduced by deer
imported into this state
or that might be contracted
by exposure to deer outside
this state, thus ensuring
the public of continued
enjoyment of the resource.

(B) There will be minimal
adverse economic effect
on small businesses or microbusinesses.
The direct cost to persons
required to comply with
the rules as proposed will
be associated with the tests
required for herd certification.
The test for chronic wasting
disease is approximately
$25 per deceased deer. The
cost for Tuberculosis Herd
Accreditation is estimated
at two farm calls by a veterinarian
(estimated to be no more
than $150 per visit) plus
approximately $4.00-5.00
per animal (the veterinarian
receives the materials to
perform the test from the
Texas Animals Health Commission
at no cost). The department
is unable to quantify the
indirect costs of compliance,
as the effort and infrastructure
cost of handling deer varies
widely from facility to
facility.

(C) The department has
not filed a local impact
statement with the Texas
Workforce Commission as
required by the Administrative
Procedures Act, §2001.022,
as the agency has determined
that the rules as proposed
will not impact local economies.

(D) The department has
determined that there will
not be a taking of private
real property, as defined
by Government Code, Chapter
2007, as a result of the
proposed rules.

4. Request for Public Comments.

Comments on the proposed
rules may be submitted to

5. Statutory Authority.

The amendments are proposed
under Parks and Wildlife
Code, Chapter 43, Subchapter
L, which authorizes the
Parks and Wildlife Commission
to establish regulations
governing the possession
of white-tailed and mule
deer for scientific, management,
and propagation purposes.

§65.601. Definitions.
The following words and
terms, when used in this
subchapter, shall have the
following meanings, unless
the context clearly indicates
otherwise. All other words
and terms shall have the
meanings assigned by Parks
and Wildlife Code.

(1) Authorized agent—An
individual designated by
the permittee to conduct
activities on behalf of
the permittee. For the purposes
of this subchapter, the
terms 'scientific breeder'
and 'permittee' include
authorized agents.

(2) Certified Wildlife
Biologist—A person
not employed by the department
who has been certified as
a wildlife biologist by
The Wildlife Society, or
who:

(A) has been awarded a
bachelor's degree or higher
in wildlife science, wildlife
management, or a related
educational field; and

(B) has not less than five
years of post-graduate experience
in research or wildlife
management associated with
white-tailed deer or mule
deer within the past 10
years.

(3) Common Carrier—Any
licensed firm, corporation
or establishment which solicits
and operates public freight
or passenger transportation
service or any vehicle employed
in such transportation service.

(4) Deer—White-tailed
deer of the species Odocoileus
virginianus or mule
deer of the species Odocoileus
hemonius.

(5) Facility—One
or more enclosures, in the
aggregate and including
additions, that are the
site of scientific breeding
operations under a single
scientific breeder's permit.

(6) Healthy Condition – deer
possessed under a Scientific
Breeder permit are in
a healthy condition if
the scientific breeder
possessing the deer also
possesses:

(A) proof of a
current, valid herd health
plan for the deer within
the scientific breeder
facility approved by Texas
Animal Health Commission;
or

(B) proof that
the Texas Animal Health
Commission has certified
the deer within the scientific
breeder facility with
a Chronic Wasting Disease
Complete Monitored Herd
status no less stringent
than Level A under the
provisions of 4 TAC Chapter
40 (relating to Chronic
Wasting Disease); and

(C) proof that
Texas Animal Health Commission
has certified the deer
within the scientific
breeder facility with
a Tuberculosis Herd Accreditation
status no less stringent
than “Surveyed Herd” under
the provisions of 4 TAC
Chapter 43, Subchapter
C (relating to Eradication
of Tuberculosis in Cervidae).

(10)[(9)]
Serial Number—A permanent
number assigned to the scientific
breeder by the department.

(11)[(10)]
Unique number—A four-digit
alphanumeric identifier
used by the department to
track the ownership of a
specific deer. Unique numbers
may be assigned by the department
or by the permittee. If
the permittee chooses to
assign the unique numbers,
each deer must be tattooed
with the permittee's serial
number in one ear and the
unique number in the other
ear. No two deer shall share
a common unique number.

§65.602. Permit Requirements
and Permit Privileges.

(a) No person may possess
a live deer in this state
unless that person possesses
a valid permit issued by
the department under the
provisions of Parks and
Wildlife Code, Chapter 43,
Subchapters C, E, L, or
R.

(b) A person who possesses
a valid scientific breeder's
permit may:

(1) possess deer within
the permitted facility for
the purpose of propagation;

(2) engage in the business
of breeding legally possessed
deer within the facility
for which the permit was
issued;

(3) sell deer that are
in the legal possession
of the permittee;

(4) release deer from a
permitted facility into
the wild as provided in
this subchapter,
provided the permittee has
received written approval
from the department prior
to the release;

(5) recapture lawfully
possessed deer that have
been marked in accordance §65.607
of this title (relating
to Marking of Deer) that
have escaped from a permitted
facility;

(6) temporarily relocate
and hold deer in accordance
with the provisions of §65.610(a)(2)
and (3) of this title (relating
to Transport of Deer and
Transport Permit) for breeding
or nursing purposes; and

(7) temporarily relocate
and recapture buck deer
under the provisions of
Subchapter D of this chapter
(relating to Deer Management
Permit).

§65.608. Annual Reports
and Records.

(a) Each scientific breeder
shall file a completed annual
report on a form supplied
or approved by the department,
accompanied by photocopies
of all invoices for the
temporary relocation of
deer and all purchase permits
used by the permittee during
the reporting period, by
not later than April 16
of each year.

(b) The holder of a scientific
breeder's permit shall maintain
and, on request, provide
to the department adequate
documentation as to the
source or origin of all
deer held in captivity,
including all invoices for
the temporary relocation
of deer, and buyer's and
seller's invoices, as applicable,
of all purchase permits
used by the permittee.

(c) A person holding deer
for nursing purposes shall
maintain and, upon request,
provide appropriate invoices
attesting to the source
of all deer in the possession
of that person.

(d) A permittee
shall notify the department
in writing by November
1 of each year of the
exact number of fawns
held by the permittee
in each permitted facility,
including fawns that have
been temporarily relocated
for nursing purposes.

(1) to another scientific
breeder when a valid purchase
permit has been issued for
that transaction;

(2) to another scientific
breeder on a temporary basis
for breeding purposes. The
scientific breeder providing
the deer shall complete
and sign a free, department-supplied
invoice prior to transporting
any deer, which invoice
shall accompany all deer
to the receiving facility.
The scientific breeder receiving
the deer shall sign and
date the invoice upon receiving
the deer, and shall maintain
a copy of the invoice during
the time the deer are held
in the receiving facility.
At such time as the deer
are to return to the originating
facility, the invoice shall
be dated and signed by both
the scientific breeder relinquishing
the deer and the scientific
breeder returning the deer
to the originating facility,
and the invoice shall accompany
the deer to the original
facility. A photocopy of
the original of the invoice
shall be submitted to the
department with the annual
report required by §65.608
of this title (relating
to Annual Reports and Records).
In the event that a deer
has not been returned to
a facility at the time the
annual report is due, a
scientific breeder shall
submit a photocopy of the
incomplete original invoice
with the annual report.
A photocopy of the completed
original invoice shall then
be submitted as part of
the permittee's annual report
for the following year.

(3) to another person on
a temporary basis for nursing
purposes, provided
the deer do not leave this
state. The scientific
breeder shall complete and
sign a free, department-supplied
invoice prior to transporting
deer to a nursery, which
invoice shall accompany
all deer to the receiving
facility. The person receiving
the deer shall sign and
date the invoice upon receiving
the deer, and shall maintain
a copy of the invoice during
the time the deer are held
by that person. At such
time as the deer are to
return to the originating
facility, the invoice shall
be dated and signed by both
the person holding the deer
and the scientific breeder
returning the deer to the
originating facility, and
the invoice shall accompany
the deer to the original
facility. A photocopy of
the original of the invoice
shall be submitted to the
department with the annual
report required by §65.608
of this title.

(4) to an individual who
does not possess a scientific
breeder's permit if a valid
purchase permit for release
into the wild for stocking
purposes has been issued
for that transaction;

(5) to and from an accredited
veterinarian for the purpose
of obtaining medical attention,
provided the deer do not
leave this state;
and

(6) to a facility authorized
under Subchapter D of this
chapter (relating to Deer
Management Permit) to receive
buck deer on a temporary
basis. The scientific breeder
shall complete and sign
a free, department-supplied
invoice prior to transporting
deer to a DMP facility,
which invoice shall accompany
all deer to the receiving
facility. The DMP permittee
or authorized agent receiving
the deer shall sign and
date the invoice upon receiving
the deer, and shall maintain
a copy of the invoice during
the time the deer are held
by that person. At such
time as the deer are to
return to the facility of
origin, the invoice shall
be dated and signed by both
the person holding the deer
under a DMP permit and the
scientific breeder, and
the invoice shall accompany
the deer to the facility
of origin. A photocopy of
the original of the invoice
shall be submitted to the
department with the annual
report required by §65.608
of this title.

(b) The department may
issue a transport permit
to an individual who does
not possess a scientific
breeder's permit if the
individual is transporting
deer within the state and
the deer were legally purchased
or obtained from a scientific
breeder.

(c) A transport permit
does not authorize and is
not valid for the transport
of deer into this state
from any other state or
country.

(d) Except as provided
in this subchapter, no person
may transport deer during
any open season for deer
or during the period beginning
10 days immediately prior
to an open season for deer
unless the person notifies
the department by contacting
the Law Enforcement Communications
Center in Austin no less
than 24 hours before actual
transport occurs.

(e) During an open season
for deer or during the period
beginning 10 days immediately
prior to an open season
for deer, deer may be transported
for the purposes of this
subchapter without prior
notification of the department;
however, deer transported
under this subsection shall
be transported only from
one scientific breeder facility
to another scientific breeder
facility. Deer transported
under this subsection shall
not be liberated unless
the scientific breeder holding
the deer notifies the Law
Enforcement Communications
Center no less than 24 hours
prior to liberation.

(f) Transport permits shall
be effective for 30 days
from the date that the scientific
breeder has completed (to
include the unique number
of each deer being transported),
dated, signed, and faxed
the permit to the Law Enforcement
Communications Center in
Austin prior to the transport
of any deer. The transport
permit shall also be signed
and dated by the other party
to a transaction (or their
authorized agent) upon the
transfer of possession of
any deer.

(g) A transport permit
is valid for only one transaction,
and expires after one instance
of use.

(h) A person may amend
a transport permit at any
time prior to the transport
of deer; however:

(1) the amended permit
shall reflect all changes
to the required information
submitted as part of the
original permit;

(2) the amended permit
information shall be reported
by phone to the Law Enforcement
Communications Center in
Austin at the time of the
amendment; and

(3) the amended permit
information shall be faxed
to the Law Enforcement Communications
Center in Austin within
48 hours of transport.

(i) A one-time, 30-day
extension of effectiveness
for a transport permit may
be obtained by notifying
the department prior to
the original expiration
date of the transport permit.

(j) No person may possess,
transport, or cause the
transportation of deer in
a trailer or vehicle under
the provisions of this subchapter
unless the trailer or vehicle
exhibits an applicable inscription,
as specified in this subsection,
on the rear surface of the
trailer or vehicle. The
inscription shall read from
left to right and shall
be plainly visible at all
times while possessing or
transporting deer upon a
public roadway. The inscription
shall be attached to or
painted on the trailer or
vehicle in block, capital
letters, each of which shall
be of no less than six inches
in height and three inches
in width, in a color that
contrasts with the color
of the trailer or vehicle.
If the person is not a scientific
breeder, the inscription
shall be "TXD". If the person
is a scientific breeder,
the inscription shall be
the scientific breeder serial
number issued to the person.

(k) Except as provided
in this subsection, no person
may possess a deer acquired
from an out-of-state source.
This subsection does not
apply to deer lawfully possessed
prior to the effective date
of this subsection.

§65.611. Prohibited
Acts.

(a) Deer obtained from
the wild under the authority
of a permit or letter of
authority issued pursuant
to Parks and Wildlife Code,
Chapter 43, Subchapter C,
E, or R shall not be commingled
with deer held in a permitted
scientific breeder facility.

(b) A person commits an
offense if that person places
or holds deer in captivity
at any place or on any property
other than property for
which a scientific breeder's
permit, or a permit authorized
under other provisions of
this title or Parks and
Wildlife Code, is issued,
except that a permittee
may transport and temporarily
hold deer at another
location for breeding, nursing,
or [a] veterinary purposes
as provided in this subchapter [facility
for treatment].

(c) No live deer taken
from the wild may be possessed
under a scientific breeder's
permit or held in a scientific
breeder's facility.

(d) No deer shall be held
in a trailer or other vehicle
of any type except for the
purpose of immediate transportation
from one location to another.

(e) Possession of a scientific
breeder's permit is not
a defense to prosecution
under any statute prohibiting
abuse of animals.

(f) No scientific breeder
shall hunt or kill, or allow
the hunting or killing of
deer held pursuant to this
subchapter.

(g) No scientific breeder
shall exceed the number
of deer allowable for the
permitted facility, as specified
by the department on the
scientific breeder's permit.

(h) No person may
purchase deer, sell deer,
offer deer for sale, transport
deer (except as provided
in §65.610(a)(5)
of this title (relating
to Transport of Deer and
Transport Permit)), temporarily
relocate deer, or release
deer into the wild in
this state if the deer
are in not in a healthy
condition as defined in §65.601
of this title (relating
to Definitions).

(i) No person may
sell deer to another person
unless either the purchaser
or the seller possesses
a purchase permit valid
for that specific transaction.

(j) Except as provided
in this subsection, no
person may possess a deer
acquired from an out-of-state
source. This subsection
does not apply to deer
lawfully possessed in
this state prior to the
effective date of this
subsection.

This agency hereby certifies
that the proposal has been
reviewed by legal counsel
and found to be within the
agency's authority to adopt.